Mohammed, R (on the application of) v Secretary of State for the Home Department

Where an immigration decision has been withdrawn and replaced by a fresh decision, the original judicial review becomes substantively spent. A challenge to the fresh decision must be brought by fresh judicial review proceedings; it cannot be introduced informally within the existing claim. Any observations on the lawfulness of the replacement decision are outside the scope of the existing proceedings. In reviewing a decision that no exceptional circumstances exist, the court applies the high Wednesbury threshold. A genuine relationship, marriage and compliance with applicable financial requirements do not, without evidence of particular hardship, necessarily amount to exceptional features.

The claimant sought judicial review of an immigration refusal which incorrectly stated that she was unmarried. The Secretary of State agreed to reconsider the matter and issued a fresh decision on 25 April 2014. That decision accepted the relationship was genuine but concluded that the Immigration Rules and Article 8 requirements were not met and that there were no exceptional circumstances.

The claimant had not formally challenged the fresh decision. The central procedural issue was whether she could challenge it within the existing judicial review proceedings, or whether fresh proceedings were required. The court also gave limited observations on the merits.

1. Disposition. The application for judicial review was dismissed. The first decision had been withdrawn and wholly overtaken by the fresh decision, so nothing remained substantively to be determined in relation to it.
2. The fresh decision could not be challenged within the existing proceedings. The requirements of the Civil Procedure Rules had not been met, and points raised only in correspondence or submissions did not constitute a formal challenge. Any legal flaw in the fresh decision had to be addressed in fresh judicial review proceedings.
3. The court nevertheless expressed views on the merits to avoid leaving the claimant and her partner with a sense of grievance. The issue would be whether the conclusion that there were no exceptional features was Wednesbury unreasonable. The threshold was extremely high and required the court to be satisfied that the conclusion was wholly unreasonable.
4. The principles in Chikwamba [2008] UKHL 40, as summarised in Hayat [2012] EWCA Civ 1054, were treated as turning on the particular facts of that case. The ordinary features of a bona fide relationship, marriage and compliance with financial requirements were not exceptional merely because they were present. No evidence of particular hardship had been provided.
5. These merits observations were expressly outside the scope of the application and did not determine the lawfulness of the fresh decision. The Secretary of State was informed that it would not be unreasonable to consider benevolently whether requiring the couple to apply from Accra was reasonable. There was no order as to costs.